2015 (2) TMI 304 - AT - Central Excise

Concessional rate of duty - manufactures of Yarn - Exemption Notification No. 29/2004-CE dated 09.07.2004 as well Notification No.30/2004-CE dt.09.07.2004 - Held that - Clearances for domestic consumption had been made by the appellant at nil rate of duty by availing the Notification No. 30/2004-CE and clearances for export had been made on payment of 4% duty under Notification No. 29/2004-CE. There is also no dispute that during the period of dispute no input duty credit had been availed and only capital goods Cenvat Credit had been availed in respect of which there is no prohibition in Notification No. 30/04-CE. Thus the Appellant even in respect of clearances made under Notification No.29/2004-CE also, had not availed input duty credit, though in respect of these clearances, they could have availed the input duty Cenvat Credit. The point of dispute is as to when the appellant have not availed input duty credit, whether they have option to avail the Notification No. 29/2004-CE where the rate of duty is 4%. The Department s contention is that once the appellant have not availed any input duty credit and they have become eligible for Notification No.30/2004-CE, they have no option but to avail of the exemption notification 30/2004-CE only and they can not opt from Notification No.29/2004-CE and pay 4% the duty and in such a situation if any duty payment has been made, it would have to be treated as deposit and the clearances would be have to be treated as clearances of fully exempted goods made under Notification No. 30/2004-CE and accordingly the Appellant would not be eligible for capital goods Cenvat Credit. This contention of the Department is totally in-correct, as Exemption Notification No. 29/2004-CE is an unconditional exemption which prescribes a rate of duty of 4% advelorum. There is no condition in this notification that for availing of this exemption prescribing concessional rate of duty of 4% adv., input duty Cenvat Credit must be availed. The condition of non-availment of input duty Cenvat Credit is for nil duty under Notification No. 30/2004-CE. But this does not mean that an assessee not availing input duty credit can not avail the exemption under Notification No. 29/2004-CE, as this is an unconditional Notification. When an assessee does not avail of input duty credit, he has option to pay 4% duty under Notification No. 29/2004-CE and also the option to clear his goods at nil rate of duty under Notification No. 30/2004-CE and when two exemption Notifications are available to an assessee, he can always opt for the Notification which is most beneficial for him and in this regard the Department can not force the assessee to avail a particular exemption Notification. - Since during the period of dispute the appellant was clearing the goods by availing full duty exemption as well as on payment of duty, the capital goods can not be treated as having been used exclusively in the manufacture of exempted goods and Cenvat Credit in respect of the same can not be denied. - impugned order deserves, no merits, hence the same are set aside. - Decided in favour of assessee.

Issues:
1. Interpretation of exemption Notifications No. 29/2004-CE and No. 30/2004-CE.
2. Eligibility for Cenvat Credit on capital goods.
3. Dispute regarding availing input duty credit.
4. Treatment of goods cleared under different notifications.
5. Applicability of Rule 6(4) of Cenvat Credit Rules, 2004.

Analysis:

Issue 1: Interpretation of exemption Notifications
The appellant, a yarn manufacturer, availed exemption under Notification No. 29/2004-CE for export and Notification No. 30/2004-CE for domestic sales. The Department argued that since the appellant cleared goods for export under Notification No. 29/04-CE but did not avail input duty credit, they should be treated as exempted goods under Notification No. 30/04-CE. However, the Tribunal held that the appellant had the option to choose the more beneficial exemption and could not be forced to avail a specific notification. The unconditional nature of Notification No. 29/2004-CE allowed the appellant to pay 4% duty without availing input credit.

Issue 2: Eligibility for Cenvat Credit on capital goods
The Department contended that since the appellant cleared goods under an exemption notification, they were not eligible for Cenvat Credit on capital goods used in manufacturing exempted products. However, the Tribunal ruled that as the appellant availed full duty exemption as well as paid duty on goods, the capital goods were not exclusively used for exempted goods, making them eligible for Cenvat Credit.

Issue 3: Dispute regarding availing input duty credit
During the dispute period, the appellant did not avail input duty credit but only capital goods Cenvat Credit. The Department argued that the appellant should have availed full duty exemption under Notification No. 30/04-CE. The Tribunal clarified that the appellant had the right to choose the exemption beneficial to them, and not availing input credit did not restrict their choice of exemption notification.

Issue 4: Treatment of goods cleared under different notifications
The Tribunal emphasized that the appellant's choice of exemption notification was based on the type of clearance, i.e., export or domestic consumption. The appellant's decision not to avail input duty credit did not limit their option to choose the appropriate exemption notification for different types of clearances.

Issue 5: Applicability of Rule 6(4) of Cenvat Credit Rules, 2004
The Tribunal concluded that since the appellant's capital goods were not exclusively used for manufacturing exempted goods, the denial of Cenvat Credit on capital goods was unwarranted. The impugned orders were set aside, and the appeals were allowed based on the appellant's right to choose the most beneficial exemption notification and the correct interpretation of the exemption notifications.

← Previous Next →